Awad v. Breeze, No. 03CA2374.

• Decision Date: 21 April 2005
• Docket Number: No. 03CA2374.
• Citation: 129 P.3d 1039
• Parties: Issam A. AWAD, M.D., MSc, F.A.C.S., Plaintiff-Appellee, v. Robert BREEZE, M.D., Glenn Kindt, M.D., Kevin Lillehei, M.D., and Kenneth Winston, M.D., Defendants-Appellants.
• Court: Colorado Court of Appeals

129 P.3d 1039

Issam A. AWAD, M.D., MSc, F.A.C.S., Plaintiff-Appellee, v. Robert BREEZE, M.D., Glenn Kindt, M.D., Kevin Lillehei, M.D., and Kenneth Winston, M.D., Defendants-Appellants.

No. 03CA2374.

Colorado Court of Appeals, Div. A.

April 21, 2005.

As Modified on Denial of Rehearing June 9 and June 30, 2005.

Certiorari Denied February 27, 2006.^*

COPYRIGHT MATERIAL OMITTED

Wheeler Trigg & Kennedy, P.C., Paul F. Hultin, Denver, Colorado; Purvis, Gray & Murphy, LLP, William R. Gray, Michael J. Thomson, Boulder, Colorado, for Plaintiff-Appellee.

Starrs Mihm & Caschette, LLP, Richard B. Caschette, Elizabeth A. Starrs, Denver, Colorado, for Defendants-Appellants.

DAVIDSON, Chief Judge.

In this interlocutory appeal filed pursuant to the Governmental Immunity Act (GIA), § 24-10-118(2.5), C.R.S.2004, defendants, Robert Breeze, Glenn Kindt, Kevin Lillehei, and Kenneth Winston, seek review of the trial court order denying their motion to dismiss the complaint filed by plaintiff, Issam A. Awad. We dismiss part of the appeal, reverse in part, vacate in part, and remand.

Plaintiff is the former chairman of the Department of Neurosurgery at the University of Colorado Health Sciences Center. Defendants are professors of neurosurgery employed by the University of Colorado (University) and practicing surgeons with the University of Colorado Hospital Authority (Hospital).

On January 22, 2003, plaintiff sent to the Colorado Attorney General two notices of claim against the University, the Hospital, and a number of public employees. He subsequently filed a complaint, naming defendants, among others, and seeking relief, as relevant here, for slander, intentional infliction of emotional distress and extreme and outrageous conduct, intentional interference with contractual relations, discrimination based on racial and national origin in violation of 42 U.S.C. § 1983, deprivation of professional reputation in violation of 42 U.S.C. § 1983, and conspiracy to deprive another of equal protection of the law in violation of 42 U.S.C. § 1985(3).

Defendants filed a motion to dismiss under C.R.C.P. 12(b)(5) alleging that: the notices of claim were insufficient; plaintiff's state tort claims did not arise from the "operation of a public hospital"; the complaint failed adequately to set forth the state tort claims for willful and wanton conduct; and plaintiff's federal claims were not actionable. The trial court denied the motion, and defendants filed this interlocutory appeal.

I. Notices of Claim

Defendants first contend that the trial court erroneously denied their motion to dismiss plaintiff's state tort claims because the notices of claim did not identify defendants by name. We conclude that further proceedings are necessary.

Section 24-10-109(2)(c), C.R.S.2004, requires that a notice of claim contain "[t]he name and address of any public employee involved, if known." This condition, together with the other requirements set forth in the statute, is "designed to permit a public entity to conduct a prompt investigation of the claim and thereby remedy a dangerous condition, to make adequate fiscal arrangements to meet any potential liability, and to prepare a defense to the claim." Woodsmall v. Reg'l Transp. Dist., 800 P.2d 63, 68 (Colo.1990).

A claimant must substantially comply with these requirements. Substantial compliance requires a good faith effort to include, as far as is reasonably possible, the listed information. Woodsmall v. Reg'l Transp. Dist., supra, 800 P.2d at 69; see also Conde v. Colo. State Dep't of Pers., 872 P.2d 1381, 1386 (Colo.App.1994). In determining whether there has been substantial compliance, a court "may consider whether and to what extent the public entity has been adversely affected in its ability to defend against the claim by reason of any omission or error in the notice." Woodsmall v. Reg'l Transp. Dist., supra, 800 P.2d at 69.

Here, the notices did not specifically identify defendants. Instead, they described the participants in the alleged actions as a "group of professors in the Department of Neurosurgery"; a "group of doctors who work for the University Hospital"; and "employees and staff of the University." As noted, defendants are all professors in the Department of Neurosurgery, physicians at the Hospital, and employees of the University.

In determining the sufficiency of a notice, a trial court must employ the C.R.C.P. 12(b)(1) standard, under which the plaintiff bears the "relatively lenient" burden of demonstrating that notice was properly given. See Finnie v. Jefferson County Sch. Dist. R-1, 79 P.3d 1253, 1261 (Colo.2003) (trial court must apply C.R.C.P. 12(b)(1) analysis, regardless of whether the issue is jurisdictional); see also Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). If there is no evidentiary dispute, a trial court may rule on the pleadings alone. See Tidwell v. City & County of Denver, 83 P.3d 75, 81 (Colo.2003); Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924 (Colo.1993). However, a court must hold an evidentiary hearing when facts relating to immunity are in dispute. See Tidwell v. City & County of Denver, supra, 83 P.3d at 81; Corsentino v. Cordova, 4 P.3d 1082, 1087 (Colo.2000).

Here, the trial court evaluated defendants' motion under C.R.C.P. 12(b)(5) and determined that, under Cassidy v. Reider, 851 P.2d 286 (Colo.App.1993), plaintiff's notices were sufficient as a matter of law. We disagree, and conclude, for two reasons, that further proceedings are necessary.

First, the court's reliance on Cassidy was misplaced. There, a division of this court held that even though the claimant's notice did not correctly recite the public entity's official name, he had substantially complied with the notice provisions. In reaching this conclusion, the division stated that "an exact statement of the public entity's official name is not among the required contents of the notice." Cassidy v. Reider, supra, 851 P.2d at 288-89. Conversely, however, while the GIA does not expressly require a notice to list the public entity's correct name, it specifically requires "the name and address of any public employee involved, if known." Section 24-10-109(2)(c).

Second, the trial court did not evaluate defendants' motion under the Trinity standard. In addition, it is unclear, from the limited record before us, whether any evidence suggests that plaintiff omitted defendants' names from the notices in good faith. See Woodsmall v. Reg'l Transp. Dist., supra, 800 P.2d at 69. Nor is there evidence in the record as to prejudice, if any, resulting from these omissions. See Finnie v. Jefferson County Sch. Dist. R-1, supra, 79 P.3d at 1260 (Trinity hearings may be conducted to develop facts relating to immunity issues even when such facts are not directly disputed); Woodsmall v. Reg'l Transp. Dist., supra, 800 P.2d at 69.

Consequently, because we cannot ascertain on the record whether plaintiff substantially complied with the statutory notice provision, we must remand to the trial court to make this determination under the appropriate standard. The court must include a factual finding whether plaintiff made a good faith effort to satisfy the notice of claim requirements. See Woodsmall v. Reg'l Transp. Dist., supra, 800 P.2d at 69. Even if it finds that plaintiff omitted defendants' names from the notice in good faith, the court yet may find no substantial compliance if it also determines that the "public entity [was] adversely affected in its ability to defend against the claim by reason of [the] omission." Woodsmall v. Reg'l Transp. Dist., supra, 800 P.2d at 69; see also Finnie v. Jefferson County Sch. Dist. R-1, supra, 79 P.3d at 1258 ("the purposes behind the [GIA] are critical when determining" compliance).

If the trial court finds that plaintiff's notices of claim do not substantially comply with the statutory notice provisions, it shall dismiss all of plaintiff's state tort claims.

II. Waiver of Sovereign Immunity for Operation of a Public Hospital

In any event, even if plaintiff satisfied the GIA notice requirements, with one exception, we agree with defendants that the trial court erred in determining that sovereign immunity was waived pursuant to § 24-10-106(1)(b), C.R.S.2004, because plaintiff's state tort claims were based on "the operation of a public hospital." We conclude that all but one of plaintiff's state claims were not based on such an operation and that those claims, except for those based on willful and wanton conduct, therefore must be dismissed.

Although factual immunity determinations are evaluated under the clear error standard, here whether plaintiff's alleged injuries resulted from the operation of a public hospital requires no factual resolution. Therefore, the trial court's ruling presents a question of law that we review de novo. See Tidwell v. City & County of Denver, supra, 83 P.3d at 81; Corsentino v. Cordova, supra, 4 P.3d at 1087.

The burden to prove subject matter jurisdiction is on the plaintiff. See Medina v. State, 35 P.3d 443 (Colo.2001). However, the legislative grants of immunity are strictly construed and the provisions withholding immunity are interpreted broadly. See Corsentino v. Cordova, supra, 4 P.3d at 1086. When interpreting the GIA, we must also give effect to the legislature's intent and imbue the statutory words with their plain and ordinary meaning. See Tidwell v. City & County of Denver, supra, 83 P.3d at 81.

Under the GIA, a public employee is "immune from liability in any claim for injury. . . which lies in tort or could lie in tort" except for specific types of actions where immunity is expressly waived. Section 24-10-118(2)(a), C.R.S.2004. As applicable here, § 24-10-106(1)(b) waives immunity in an action for injuries resulting from "[t]he operation of any public hospital." See also § 24-10-118(2)(a) (making this provision applicable to public employees).

The GIA defines the term "operation" as "the act...